The Union and Employer named above are parties to a 2006-2009 collective
bargaining agreement
which provides for final and binding arbitration of certain disputes. The parties asked the
Wisconsin
Employment Relations Commission to appoint the undersigned to hear and resolve the
grievance of Cheryl
Polinski. The parties filed pre-hearing briefs and agreed to an expedited award, and they
agreed that the
award would be non-precedential. A hearing was held on July 24, 2007, in Muskego,
Wisconsin, at which
time the parties were given the opportunity to present their evidence and arguments. The
record was
closed at the conclusion of the hearing.

ISSUE

The parties ask:

Did the Employer violate the collective bargaining agreement when it failed to
award the Administrative Assistant I position at Tess Corners School in August of 2006
to the Grievant? If so, what is the appropriate remedy?

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BACKGROUND

The Grievant is Cheryl Polinski, who is an Administrative Assistant II at the Lake
Denoon School.
She has been with the District for 21 years.

On August 15, 2006, the District posted a job vacancy for an Administrative
Assistant
I position
at the Tess Corners Elementary School. Polinski applied for the position ­ which
would have given her
more hours and a higher pay rate. The District hired Sandra Watson, who had not worked
for the District
before. The Union filed a grievance which was denied.

The collective bargaining agreement allows the District to consider outsiders at the
same time with
current employees in filling a vacant position. Section 10.05 of the agreement states:

When vacant or newly created positions become available,
first consideration
shall
be given to present employees from within the bargaining unit (as defined in Article I
herein) in which the vacancy occurs. Such consideration shall be based upon seniority,
prior work performance, and relevant experience in that order. In cases where prior work
performance and relevant experience are substantially equal, seniority shall prevail. The
Board is not limited to considering present employees when filling new or vacant positions.

The job posting called for several qualifications. Critical to this case were two of
those
qualifications ­ 1, ability to type 60 net words a minute, and 2, being computer literate
on PC systems and
related software including Microsoft Word and Excel. The applicants included the Grievant,
a couple of
employees from another bargaining unit, and five applicants who did not work for the
District previously,
including Watson who was awarded the position at issue. These people were sent to
Manpower, Inc., a
company that provides employment services, for tests on several elements related to the job
posting.

The primary factor in this case comes down to the fact that the Grievant typed 48
words per
minute, not 60 as required by the position. Also, she was rated as a beginner in the Word
and Excel tests.
Watson typed 68 words per minute and was rated as master on Word and proficient on
Excel. The
Grievant was not invited to an interview as the next part of the application, because the
District had
determined that she did not meet the minimum qualifications for the position.

The requirement of 60 words per minute for the Administrative Assistant II position
has been in
prior postings for many years. This was the most important factor to the District.

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MA-13615

When the Grievant posted for her current position as Administrative Assistant II, that
position
required typing ability of 60 words per minute. The Grievant has not tested that high in the
past but got that
position anyway. Catherine Bowmil was hired by the District as an Administrative Assistant
I in the 1999-2000 school year, and she could not type 60 words per minute.

The Grievant has a very pleasant personality and is well liked by staff, parents and
students. There
is no dispute that the Grievant has most of the qualifications listed by the posting for the
position. She did
not take issue with the test results from Manpower.

The Assistant Superintendent, Robert Rammer, testified that the District interviewed
only the
applicants who met the 60 word per minute qualification. That was the first threshold to
meet. Two outside
candidates who scored the highest marks on all the tests were not
interviewed because they did not meet
the 60 word per minute qualification. Rammer found this qualification to be important in
this position
because the volume of work has increased, and in fact, the work product of this bargaining
unit has
increased disproportionately with other kinds of positions in the last few years. The decision
to not select
the Grievant was based on the fact that she did not meet the minimum qualifications.

DISCUSSION

The District is correct when it states that seniority does not come in to play unless the
applicants
are substantially equal in qualifications. Section 10.05 of the bargaining agreement states
that: "In cases
where prior work performance and relevant experience are substantially equal, seniority shall
prevail."
Bargaining unit members would always have seniority over applicants from the outside, and
Section 10.05
gives the District the right to consider outside applicants when filling vacancies, as it states:
"The Board is
not limited to considering present employees when filling new or vacant positions." If a
present employee
could exercise seniority to get a new or vacant position, no outsider would be considered,
and the last
sentence of Section 10.05 would have no meaning. All the words should be given some
meaning and read
together to make sense.

While the Grievant appears to have done a very good job in her present position, she
still had to
meet the qualifications for the position she was seeking. Because she did not meet the typing
qualification,
there was no need to determine whether her prior work performance and relevant experience
were
substantially equal to another applicant. Although it appears that the District has waived the
typing score
of 60 in the past in a couple of instances (the Grievant and Bowmil), that happened several
years ago and
not under Rammer's administration. The District needs to be careful in this respect to avoid
the appearance
of being arbitrary and

capricious. However, there is not much on the record about how this came about,
what the

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MA-13615

typing score of Bowmil actually was, why it was waived, etc. There is no reason on
this record to demand
that the District waive the typing requirement in all future cases. The posting also stated that
applicants
need to be computer literate in Microsoft Word and Excel programs. The Grievant was
rated as a beginner
by Manpower. "Literate" means something more than being a beginner. To be "literate" is
to be
knowledgeable. The Grievant did not meet that qualification. The term "literate" is more in
line with
Manpower's determination of being "proficient" than "beginner."

The District's qualifications were reasonably related to the position. The
qualifications have been
in place for several years. The District's testing procedures were not biased. There is really
nothing that
the District did that would violate the collective bargaining agreement. The District gave
some consideration
to the Grievant, but when she did not meet the minimum qualification or threshold for the
job, the District
was not obligated to give her further consideration for the position. Thus, there is no
contract violation.